In a maritime personal injury case brought under the Jones Act, federal law, not state law, governs the plaintiff's entitlement to prejudgment interest. Cano v. Gonzalez Trawlers, Inc., 809 S.W.2d 238, 239 (Tex.App. — Corpus Christi 1990, no writ). The general rule under the Jones Act is that, if a seaman elects to proceed in federal court under admiralty jurisdiction, he or she can have prejudgment interest but no jury; conversely, if the seaman elects to proceed in a state or federal court under legal jurisdiction, he can have a jury but must forego prejudgment interest.
This case is "mixed," in that Foster brought a Jones Act claim as well as claims for unseaworthiness, maintenance and cure. Wyatt v. Penrod Drilling Co., 735 F.2d 951, 956 (5th Cir. 1984) (in a mixed case, "`there is no separate "pure" admiralty item on which to allow interest'") (quoting Barton v. Zapata Offshore Co., 397 F. Supp. 778, 780 (E.D. La. 1975)); Petersen v. Chesapeake Ohio Ry., 784 F.2d 732, 741 (6th Cir. 1986) ("[w]here it is impossible to determine if the damages awarded relate only to the unseaworthiness claim, prejudgment interest will not be awarded"); Mihalopoulos v. Westwind Africa Line, Ltd., 511 So. 2d 771, 781 (La.Ct.App. 1987) (in mixed cases "plaintiff is not entitled to any pre-judgment interest"); Cano v. Gonzalez Trawlers, Inc., 809 S.W.2d 238, 240 (Tex.App. 1990) (in mixed cases, "the plaintiff is not entitled to any prejudgment interest"). ¶14 Foster relies on Sintra, Inc. v. City of Seattle. But as the State correctly points out, the result in that case hinged on RCW 8.04.092, a statute not present here.
However, federal courts have ruled that prejudgment interest is not available in cases brought under the Jones Act that are tried to a jury. Simeon v. T. Smith Son, Inc., 852 F.2d 1421, 1435 (5th Cir. 1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); Barrios v. Louisiana Construction Materials, 465 F.2d 1157 (5th Cir. 1972); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 972-73 (5th Cir. 1969); see also Cano v. Gonzalez Trawlers, Inc., 809 S.W.2d 238, 240 (Tex.App. — Corpus Christi 1990, no writ). One stated rationale behind denying prejudgment interest in jury-tried Jones Act cases is apparently grounded in the notion that the jury in awarding damages for the various elements makes some allowance for loss caused by delay.